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Social Media Authentication: 101
Social media is a part of our everyday lives. Websites (and their smart phone apps) like Twitter, Facebook, Pinterest, Instagram, and Tumblr make it simple to communicate, find information, and connect with people all over the globe. Little, if any, thought is given to the legal implications of a Facebook “like” or a tweet.
However, social media usage increasingly forms the basis of both civil and criminal legal actions. For example, the National Labor Relations Board is seeing an explosion of work related to employment action taken after an employee makes a social media post. See, e.g., Karl Knauz Motors, Inc., 358 N.L.R.B. No. 164 (Sept. 28, 2012); Hispanics United of Buffalo, Inc., 359 N.L.R.B. No. 37 (Dec. 14, 2012); Jones & Carter, Inc., No. 16-CA-027969 (Nov. 26, 2012), aff’d, (N.L.R.B., Feb. 8, 2013). Recently, the Fourth Circuit held that a Facebook “like” could constitute protected speech in Bland v. Roberts. Bland v. Roberts, No. 12-1671, 2013 WL 5228033 (4th Cir. Sept. 23, 2013). A tenured journalism professor at the University of Kansas was put on leave from his job after posting a controversial tweet following the Navy Yard shooting in Washington, D.C. Brian Burnes and Mará Rose Williams, KU Puts Professor on Administrative Leave for Tweet Sent After Navy Yard Massacre, The Kansas City Star (Sept. 20, 2013). A former prosecutor in Norfolk was charged with a felony after allegedly posting a threatening message on Facebook. Louis Hansen, Ex-Norfolk Prosecutor Charged over Facebook Posts, PilotOnline.com (July 27, 2012).
In all of these situations, it is clear that printouts or electronic files of social media activity are necessary evidence. People share intimate details of their lives through social media, often without considering the repercussions, or believe that their profile is “private” and therefore not subject to scrutiny. This way of thinking can be very useful for the attorney who finds a photograph of the permanently injured car accident victim base jumping, a slip-and-fall plaintiff’s post about getting rich through her lawsuit, or the how to make narcotics out of cold medicine instructional video on the accused drug-dealer’s profile. Similarly, social media evidence is relevant to the extent a person’s motive, state of mind, or intent to perform a certain act is at issue. Moreover, discovery requests increasingly include requests for electronically stored information (“ESI”), including relevant social media posts, messages, or activity. These requests can yield highly relevant profile pages, public or private messages, digital photographs, video, or chat transcripts that an attorney wants to use as evidence at trial.
Getting social media evidence admitted at trial, however, is sometimes seems easier said than done. Social media sites are complicated, constantly evolving, and may be unfamiliar to many judges. All evidence must be authenticated pursuant to the Maryland Rules of Evidence. In addition, Maryland has set a high bar for admissibility, requiring that the social media evidence be definitively authenticated. Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011). This is, in large part, due to the legitimate concerns that fictitious social networking accounts can be created and legitimate social networking accounts can be hacked or used by others if left unattended.
Social media evidence is most straightforwardly authenticated by the person who created it. A cooperating witness can testify that he or she sent the message, made the post, or took the photograph. If, however, the witness is unavailable or uncooperative, social media evidence may be authenticated through any of the ways set forth in the Maryland Rules of Evidence, such as via the testimony of an expert witness. Md. Rule 5-901. To be sure that a sufficient base for authentication has been laid, testimony should be elicited regarding how the social media account is created and concerning security and privacy settings, operations, opportunity for account manipulation, and metadata. Additionally, testimony should address concerns relating to hacked or fictitious accounts to eliminate the possibility that the social media posting could have been created or made by someone other than the witness. In a civil case, the foundation for authentication can be laid during discovery, through interrogatories, requests for admission, and depositions.
As digital devices evolve and social media use becomes even more commonplace than it is now, social media evidence will become increasingly relevant in both civil and criminal cases. When used properly, social media evidence can be a formidable weapon. However, unless the judge admits the evidence, the weapon may be useless. The biggest hurdle for the admissibility of social media evidence is proper authentication. Case law will continue to develop in this area, but for now we should assume that the court will want more information than the social media user’s name, date of birth, and profile picture to establish authenticity. The more information that the proponent can provide showing that the content was created by the user, the better off he or she will be.
Rachel Severance is an associate at Niles, Barton & Wilmer, LLP and concentrates her practice in the areas of commercial litigation, employment and labor law, insurance law, and appellate practice. Ms. Severance can be reached at firstname.lastname@example.org.